Kerin v. Industrial Commission ( 1942 )

This appeal is from a judgment of the circuit court for Dane county confirming an order of the Industrial Commission dated April 15, 1940, dismissing appellant's application for death benefits under the Workmen's Compensation Act. Appellant is the surviving widow of John Kerin. The deceased lived at Sun Prairie with his wife and two children, and was employed by O. T. Havey as a journeyman electrician. Deceased was a member of the union, Madison Local No. 159. A written contract entered into between the employers' association, of which Havey was a member, and the union governed the employment of Kerin by Havey. This contract was in force on September 14, 1939, the date on which Kerin met with a fatal accident. The pertinent provisions of the contract provide:

"(6) The union may, at its option, designate a business manager for the terms of this agreement, and he shall have the privilege at all times to transact whatever business he may have to perform with the employers or steward in a shop.

"(11) Carfare, transportation and board: All carfare, or other transportation necessary for all journeymen and apprentices in excess of one local streetcar fare each way daily, must be paid by the employer. When men are sent outside of the jurisdiction of the union, all transportation, board and lodging must be paid by the employer."

The deceased had been employed by Havey for over a year at the time of his fatal accident. The employer, Havey, had an electrical job at Evansville, Wisconsin. The deceased commenced working on this job on June 2, 1939. Evansville is in the jurisdiction of the Janesville Union No. 890. Havey knew that Kerin was driving back and forth between his home in Sun Prairie and Evansville while working on this job. The working day was eight hours, starting at 8 o'clock in the morning, a half hour for lunch, and quitting time was 4:30 p.m. Kerin's wages, as fixed by the contract between the electrical contractors of the City of Madison and the union, were $1.38 per hour for eight hours per day. After quitting time at 4:30 p.m. Kerin had nothing to do for his employer. On the day of the accident Kerin left Evansville sometime between 4:30 and 4:45 p.m. Noe, another electrician employed by Havey, rode down to Evansville with Kerin that morning and also rode back to Madison with him that evening. Noe left Kerin's car at the Hamacher Hotel in Madison, where he stayed. Kerin proceeded on his way to Sun Prairie on State Highway No. 19 and met with his fatal accident a mile west of Sun Prairie at about 6 p.m. While working on the Evansville job Kerin was paid $1.50 per day in addition to his regular wage. This was paid by separate check on slips presented by Kerin. One of such slips received in evidence reads as follows:

"13 days at Evansville, Wis. at $1.50 per day — $19.50 paid
9-3-39.                    (Signed)  "JOHN KERIN."

The Industrial Commission's examiner found that under the terms of the contract between the electricians' union and the respondent, Havey, and under the contract of employment between Havey and the deceased, respondent agreed to pay all transportation expenses incurred by Kerin in going from his home in Sun Prairie to Evansville; that Kerin, with the knowledge and consent of Havey, used his own car in traveling to and from his home to his place of work in Evansville; that under the terms of the contract of employment, Havey paid Kerin $1.50 per day in addition to his regular wage to cover transportation costs; that in the event that said sum of $1.50 per day did not cover the actual transportation costs incurred by Kerin, Havey, under the contract of employment, was obliged to pay for any additional expenditures so incurred. The examiner found that at the time of his injury the deceased was performing services growing out of and incidental to his employment; that the surviving widow was entitled to a death benefit in the sum of $6,000. In accordance with his findings the examiner entered an order directing Havey and his insurance carrier to pay the death benefits and reimbursement for funeral expenses as provided under the Workmen's Compensation Act.

Upon the employer's petition for review and proceedings had thereon before the Industrial Commission as a body, the findings and order of the examiner were set aside. The commission found that it was the duty of one Adolph H. Nelson, as business manager of Local Union 159, to negotiate with employers in his jurisdiction as to what should be paid and what allowances should be made to employees under the terms of the contract; that Nelson negotiated with Havey and agreed with him that employees who had cars of their own and wished to come home evenings were to be allowed to make use of them and that instead of receiving board and lodging under the terms of the contract they were to be allowed the sum of $1.50 per day; that if the employees elected to accept the sum of $1.50 per day, they should be required to assume the expense of the use of their cars; that the construction placed upon the pertinent provisions of the contract by Nelson was that if the employees were sent to Evansville to work they would be entitled to transportation to go to Evansville, to be furnished with room and board until the job was completed, and then with transportation to bring them to their homes; that it was optional with employees to accept the sum of $1.50 per day or to receive board and room at Evansville; that there was no obligation on the part of the employer to transport employees to and from their homes except at the beginning and end of the job; that deceased, John Kerin, elected to receive the sum of $1.50 per day in lieu of board and room at Evansville, and that he used his own car in traveling to and from his home to his place of work. The commission found that the employer had no control over the instrumentality used by Kerin in conveying himself to and from work; nor did he specify the route which was to be taken by Kerin. From which the commission found that at the time of his injury deceased was not performing services growing out of and incidental to his employment; that his injury did not arise out of such employment; that there was no obligation on the part of the employer to transport Kerin to and from his work; that such transportation was being performed by Kerin upon his voluntary election based on the agreement made with Havey, under which he received the sum of $1.50 per day in lieu of board and lodging; that the provision as to payment of transportation quoted above has reference only to transportation at the beginning and end of a job and not for interim transportation. Upon such findings the commission entered an order dismissing the widow's application. The circuit court confirmed the findings and order of the Industrial Commission as a body. Appellant contends that the findings of the Industrial Commission are conclusions of law subject to review rather than findings of fact which are conclusive. While counsel differ as to whether the question presented is one of law or one of fact it is unimportant as we view the undisputed facts. It is not claimed that the employer had agreed to actually transport the deceased or other employees engaged on the Evansville job daily to and from their place of work. In appellant's brief it is said:

"The employee, Kerin, in this case, never boarded, roomed, or lodged in Evansville."

Nelson, the business manager of the union, whose duty it was to negotiate with the employers in his jurisdiction as to wages to be paid and allowances made to employees under the terms of the contract of employment, and who negotiated the contract in question, agreed with the respondent, Havey, that employees who had cars of their own and wished to commute between their home and their place of employment were to be allowed to make use of their cars; and instead of receiving board and lodging in Evansville under the terms of the contract they were to be allowed $1.50 per day, they to assume the expense of the use of their cars. Since Kerin did not board or room in Evansville, it is clear that the statements which he rendered to his employer, at the rate of $1.50 per day, were for the use of his car in going to and from his work daily. So his interpretation of the provision in the contract for transportation is in accordance with Nelson's testimony and the findings of the commission that it was optional with employees to accept the sum of $1.50 per day in addition to their regular wage or receive board and room at Evansville.

Sec. 102.03(1)(c), Stats. 1939, recognizes that an employee, injured while off from the premises of the employer, and while on his way to and from work, is not covered by the Workmen's Compensation Act. Only in cases where the employer has agreed to actually transport employees as a part of the contract of employment does the act apply. In such cases the employer determines the means of transportation, the route traveled, the time and place for the employees to assemble for transportation. In such cases the employer has the control of the transportation. Such considerations are pointed out in Rock County v. Industrial Comm.185 Wis. 134, 200 N.W. 657.

In the recent case of Brown v. Industrial Comm. 236 Wis. 569,295 N.W. 695, it was held that where a used-car salesman was merely permitted to make use of any available car of his employer in going between the employee's home and the employer's place of business, and there was no obligation on the employer to transport the employee to and from work, there was no contract to furnish transportation, and the employee was not performing services growing out of and incidental to his employment when injured while attempting to start the car at his home preparatory to leaving for work. At page 570 the court said:

"At most, the use of the car was an allowance in the way of pay which placed no obligation on the employer to transport appellant to and from work. An employer, agreeing in his contract with an employee merely to permit the use of one of his automobiles by the employee in going between the employee's home and the employer's place of business, does not become liable for the transportation of the employee.Bloom v. Krueger, 182 Wis. 29, 195 N.W. 851; Geldnich v.Burg, 202 Wis. 209, 231 N.W. 624; Ohrmund v. IndustrialComm. 211 Wis. 153, 246 N.W. 589; Goldsworthy v. IndustrialComm. 212 Wis. 544, 250 N.W. 427; Wisconsin CarbonicGas Co. v. Industrial Comm. 219 Wis. 234,262 N.W. 704; Githens v. Industrial Comm. 220 Wis. 658,265 N.W. 662.

"Ordinarily, an employee going to his place of employment is in the prosecution of his own business. There is nothing in the facts presented to show any means by which the employer could control the transportation or the use of the automobile which the employee was permitted to use."

In Ohrmund v. Industrial Comm., supra, the employer loaned his car to the employee with the request that he hurry back to work after lunch. On the return trip employee was injured. Compensation was denied. At page 156 the court said:

"It is difficult to imagine what services the employee rendered to his employer in going to his home for this meal. During that period he was on his own time, he was subject to no control while away, he performed no act which in the slightest degree advanced his employer's interest. In hurrying back he was not rendering a service, he was returning to a place where he was required to present himself for the purpose of future service. It was a part of his duty as an employee to present himself at the place where the service was to be rendered. The master had not agreed to transport him and did not transport him. Therefore the relation of employer and employee did not exist until he returned to the place where, by the terms of employment, he was required to perform service."

In the instant case the contract of employment, so far as here material, provides:

"When men are sent outside of the jurisdiction of the union, all transportation, board and lodging must be paid by the employer."

By no process of reasoning can this language be construed as an agreement on the part of the employer to actually transport the employee; and a mere additional daily allowance to the employee, which he is at liberty to use for board and room at his place of employment or for travel to and from work in the employee's car, does not extend the compensation act so as to cover the employee while commuting to and from his work.

In the Brown Case, supra, the employee was permitted to make use of any available car of his employer in going to and from his home to the employer's place of business. In that case the employer actually furnished a car for the transportation of his employee. The court held the use of the car was an allowance in the way of pay which placed no obligation on the employer to transport the employee. In the instant case, after quitting time at 4:30 p.m., Kerin had nothing to do for his employer until he returned to work the following morning at 8 a.m. In the interim the employer had no control over Kerin as to his means of transportation to and from his work, or in any other respect. This conclusion must follow from the undisputed facts in the case. The specific contract provisions are facts to be found by the commission which, if supported by credible evidence, are conclusive. Brown v. Industrial Comm.,supra, and cases cited. The facts found by the commission are fully sustained by the evidence. However, were we to accept appellant's theory that the question presented was one of law, on the evidence we would be obliged to hold that the commission correctly interpreted the contract.

By the Court. — Judgment affirmed.